Mason v. Melendez

• Decision Date: 14 October 1981
• Docket Number: No. 78-C-155.,78-C-155.
• Citation: 525 F. Supp. 270
• Parties: Willie Lee MASON, Plaintiff, v. Fred MELENDEZ, Arthur Gerg, and Eugene Thomas, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

525 F. Supp. 270

Willie Lee MASON, Plaintiff, v. Fred MELENDEZ, Arthur Gerg, and Eugene Thomas, Defendants.

No. 78-C-155.

United States District Court, W. D. Wisconsin.

October 14, 1981.

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Sarah B. O'Brien, Davis & O'Brien, Madison, Wis., for plaintiff.

Nadim Sahar, Asst. Atty. Gen., State of Wisconsin, Bronson C. La Follette, Atty. Gen., Madison, Wis., for defendants.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This is a civil rights action based on 42 U.S.C. § 1983 seeking monetary relief from certain members of the Wisconsin Parole Board and others. The matter was tried to a jury in January, 1981. The jury answered affirmatively the single question then remaining in the case: whether each of the three defendants, Melendez, Gergen, and Thomas, as members of a hearing panel of the board, had terminated plaintiff's parole hearing because the plaintiff had refused to waive (give up or withdraw) his objection to the presence of certain information in his file. The jury awarded plaintiff one dollar as nominal damages. Judgment on the verdict was entered. Defendants' motion for judgment notwithstanding the verdict (judgment n. o. v.) currently is before the court.

The complaint named as defendants, among others, the defendants Melendez, Gergen, and Thomas, as the three members of the board who sat as a panel to hear plaintiff's application for parole. The complaint alleged that the said three defendants had violated in various ways rights secured to plaintiff by the Constitution of the United States. By the time the case was submitted to the jury, only the said three defendants remained in the case, and the only surviving allegation of the complaint against them was the allegation that they had terminated the hearing because plaintiff had refused to waive his objection to the presence of certain information in his file.¹ Therefore, I approach the present issue as if only Melendez, Gergen, and Thomas had ever been named as defendants, and as if the only allegation ever made against them had been that they terminated the hearing because plaintiff refused to waive his objection to the presence of certain information in his file.

The facts relevant to my decision on the present motion for judgment n. o. v. are set forth below under the heading "Facts." Whenever I use the term "defendants" hereinafter, I refer only to Melendez, Gergen, and Thomas.

Facts

Defendants filed a motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., in April, 1978, in response to plaintiff's complaint. They argued that the complaint failed to state a claim upon which relief could be granted, because, when processing parole applications and conducting parole release hearings, defendant parole board members perform a quasi-judicial function and are absolutely immune from liability for money damages in actions based on 42 U.S.C. § 1983. The court decided in an order dated October 18, 1978, that the record was not sufficiently developed on the nature of Wisconsin Parole Board proceedings to permit findings of fact necessary to a determination whether parole board members should be accorded full immunity from all claims for money damages. Defendants' motion to dismiss was denied.

On February 27, 1979, in their answer to the complaint, defendants raised the same defense of absolute quasi-judicial immunity. On March 26, 1979, plaintiff filed a motion for summary judgment, arguing that the parole board's actions were unconstitutional. Defendants did not file a counter motion for summary judgment, but filed a brief requesting not only that plaintiff's motion for summary judgment be denied, but that summary judgment be entered in defendants' favor. Defendants' brief was supported by submission of a copy of rules and regulations governing the procedures of the Wisconsin Parole Board. It was not supported by any other factual material directed to the matters relevant to whether the members of the Wisconsin Parole Board should enjoy absolute immunity from liability for money damages, qualified immunity, or no immunity. Following a pretrial conference, plaintiff's motion for summary judgment was denied in its entirety and defendants' request, by brief, that summary judgment be entered in their favor was granted, except for the single issue described above. On that issue, defendants' request for summary judgment in their favor was denied, and the issue was scheduled for trial by jury. It was necessarily implicit, but was not made explicit, that in regard to the single surviving issue, and on the record as then developed, defendants were not entitled to summary judgment on any theory, including the theory of immunity, whether absolute or qualified.

After plaintiff had rested his case before the jury, defendants moved for a directed verdict. In his statement in support of that motion, counsel for defendants did not contend that defendants were entitled to any form of immunity, but rather that plaintiff's evidence had failed to show that the reason for defendants' termination of the hearing was that plaintiff had refused to waive his objection to the presence of certain information in his file. The court denied the motion, and defendants then presented their case. Defendants did not move for a directed general verdict at the close of all the evidence. Defendants did not request a special verdict question relating to absolute immunity. No such question was put to the jury. The jury found that each of the defendants had terminated plaintiff's parole hearing because plaintiff had refused to waive his objection to the presence of certain information in his case file. The jury also awarded plaintiff one dollar in nominal damages. I concluded that these jury findings entitled plaintiff to judgment in his favor. Judgment for plaintiff was entered in the sum of one dollar on January 30, 1981. Defendants' motion for judgment n.o.v. was filed on February 9, 1981. The ground for the motion is that defendants enjoy absolute immunity.

A conference was held on April 8, 1981, to consider the manner in which the court should proceed to decision on the absolute immunity issue, now renewed in the motion for judgment n.o.v. At that conference the court posed three questions and then issued a memorandum posing those questions. One question was whether either party wished to present additional evidence relevant to whether membership in the Wisconsin Parole Board is the kind of office that should enjoy absolute immunity. Defendants neither asked to submit, nor submitted, additional evidence on that matter.

Defendants now emphasize that their motion for judgment n.o.v. concerns whether defendants are absolutely immune as a matter of law, as opposed to whether the evidence was sufficient to raise a factual issue for the jury's consideration about the reason for defendants' termination of plaintiff's parole hearing. Consequently, defendants argue, neither a motion for a directed verdict at the close of all the evidence nor even their present motion for judgment n.o.v. was necessary to preserve the absolute immunity bar to an award of money damages against them. Their brief requests this court to construe their motion for judgment n.o.v. as a motion to alter the judgment. Fed.R.Civ.P. 59(e).

Opinion

Three circuits have held that members of parole boards are entitled to absolute immunity from liability for damages in § 1983 lawsuits when acting in a quasi-judicial capacity. See Sellars v. Procunier, 641 F.2d 1295 (9th Cir. 1981); Pope v. Chew, 521 F.2d 400 (4th Cir. 1975); Cruz v. Skelton, 502 F.2d 1101 (5th Cir. 1974). The Third Circuit has conferred absolute immunity on parole boards' "adjudicatory" decision-making, but only qualified immunity on their "administrative" actions. Thompson v. Burke, 556 F.2d 231 (3d Cir. 1977). Several district courts in these and other circuits also have taken the position that members of parole boards should be given absolute immunity from liability for damages in civil rights suits. E. g., Bricker v. Michigan Parole Board, 405 F.Supp. 1340 (E.D. Mich. 1975); Garvey v. Casson, 423 F.Supp. 68 (D. Del. 1976). Few recent decisions have awarded only qualified good faith immunity to members of parole boards. E. g., Joyce v. Gilligan, 383 F.Supp. 1028 (N.D. Ohio 1974). See also Henzel v. Gerstein, 608 F.2d 654 (5th Cir. 1979) (parole board official protected by only qualified immunity when making telephone calls concerning parolee's visits to other states). The Supreme Court of the United States has expressly reserved the "question of what immunity, if any, a state parole officer has in a § 1983 action where a constitutional violation is made out by the allegations." Martinez v. California, 444 U.S. 277, 285, n.11, 100 S.Ct. 553, 559, n.11, 62 L.Ed.2d 481 (1980).

Although no decision by a state or federal court cited by counsel or known to me has held that members of the Wisconsin Parole Board are absolutely immune from § 1983 damages, there is a serious possibility that this would be the result in a case reaching the merits of this issue. In this case, defendants have raised the asserted absolute immunity bar in a Rule 12(b)(6) motion, then in a request for summary judgment in their brief opposing plaintiff's motion for summary judgment, and now in a motion for judgment n.o.v. Plaintiff's argument opposing this motion for judgment n.o.v. relies on a procedural rule whose enforcement would prevent reaching the merits of the immunity question.² Under these circumstances, on my own motion, I will reexamine my decisions denying defendants' earlier motion to dismiss and denying their later request by brief for an award of summary judgment. I must reach the pending motion for judgment n.o.v. only if I adhere to the two earlier rulings.

Immunity from damages, whether absolute or qualified, represents a sharp departure from the principle that persons are responsible for the harm ...